The Attorneys Fidelity Fund says it has great sympathy for the desperately ill former Springbok rugby player Joost van der Westhuizen, but there is no legal basis for his claim of over R385 000 that was allegedly stolen by his late attorney, the High Court has heard.
Van der Westhuizen, who was diagnosed with the deadly and rare Motor Neuron Disease in 2011, instituted an urgent application in the North Gauteng High Court in Pretoria to force the Fund to reimburse him for the loss he suffered as a result of the alleged theft of his money by his erstwhile attorney Robert Klinkenberg.
Klinkenberg was found dead in the veld in Magaliesburg in December last year with a single bullet wound. His death was treated as a suspected suicide.
Motor Neuron Disease attacks the motor neurons in the brain and spine that regulates breathing, speech, swallowing, walking and gripping abilities. Van der Westhuizen said in court papers he was presently only able to communicate through technology by using the movement of his eyes, had to be fed through a tube and was fatally dependent on very expensive medical treatment and care.
The fund in May this year rejected Van der Westhuizen’s claim on the grounds that it was not liable, as Klinkenberg had been authorised to invest the funds in his capacity as an executor, trustee or curator. Counsel for Van der Westhuizen, Jaap Cilliers SC, argued where an attorney misspent a client’s money, the fund was responsible for it and the section relied on by the fund did not apply where an attorney acted as a trustee.
He submitted that when Klinkenberg committed suicide, there was a shortage of some R200 million in his trust account, and the inevitable conclusion was that he had probably stolen Van der Westhuizen’s money. He argued Van der Westhuizen had not invested the money with Klinkenberg in the legal sense of the word, but rather had entrusted Klinkenberg to handle his day-to-day financial affairs.
He said the very basis for the creation of the Fund was to protect client if an attorney misappropriated his money and that the section of the act relied on by the fund had been created to protect the fund when clients wilfully asked their attorneys to invest in pyramid-type of schemes.
Counsel for the Fund, Gary Oliver, argued that Van der Westhuizen had not even proved that Klinkenberg had in fact stolen his money. He said the Fund had sympathy for Van der Westhuizen’s situation, but he should have sued Klinkenberg’s deceased estate and had not met the legal requirements for instituting a claim against the Fund.
Judgment will be delivered on Wednesday.